Ms Julie Major v Resilience Solutions Pty Ltd

[2018] FWC 660

[2018] FWC 660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Julie Major
v
Resilience Solutions Pty Ltd
(U2017/11938)

DEPUTY PRESIDENT BEAUMONT PERTH, 31 JANUARY 2018

Application for an unfair dismissal remedy – small business employer – whether dismissal consistent with the small business fair dismissal code – code met – other relevant matters.

[1] On 9 November 2017, Ms Julie Major (Ms Major) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of her dismissal (the Application).

[2] Resilience Solutions Pty Ltd (Resilience) employed Ms Major as a Heavy Duty Safety and Compliance Officer from 2 September 2014. On 20 October 2017, Resilience terminated the employment of Ms Major citing that Ms Major had failed:

● to follow strict guidelines in relation to communication to outside parties and clients resulting in reputational damage and an erosion of brand integrity; and
● to promote the interests of Resilience by actively exposing the company to potential economic loss.

[3] Mr Bill Hutchison, husband of Ms Major, represented Ms Major at hearing. For the Respondent, Mr Mike Bone, Director for Resilience, undertook the representational role.

[4] Resilience lodged a jurisdictional objection to the Application on the basis that it is a Small Business Employer. This decision deals with Resilience’s jurisdictional objection and the Application.

Background

[5] Resilience provides security and compliance services to the Toll Marine Supply Base located in Dampier, Western Australia (Toll). The contractual arrangement between Toll and Resilience is by way of purchase order on a month by month basis.

[6] Other ad hoc work, which arises in the region, includes that at the Bulk Materials Handling Facility wharf, which is located 1km from the Toll Base (BMF). It was said that Woodside owns the BMF and leases it to a variety of maritime businesses. Similar to its arrangements with Toll, Resilience carries out work on the wharf by way of purchase order.

[7] Ms Major had previously worked for Resilience on a casual basis from 17 October 2013 and was subsequently offered a full time position on 29 August 2014.

[8] It was not in dispute that the Security Services Industry Award 2010 covered Ms Major and that Ms Major earned an amount of approximately $89,544 per annum.

[9] Ms Major’s Employment Agreement dated 29 August 2014 provided:

4 Duties and Responsibilities

4.1 You must diligently perform the duties and responsibilities that the employer assigns to you. The employer may vary these duties and responsibilities at any time.

4.2 You must devote your whole time, attention and ability to the business of the employer and the Group.

…4.4 You must

a) perform all duties to the best of your ability at all times;
b) use your best endeavours to promote and protect the interests of the employer at all times; and
c) follow all reasonable and lawful directions given to you by the employer…

…5.1 Policies

From time to time, the employer may implement policies, guidelines, or rules, which may be amended at the discretion of the employer (‘Policies’). You must comply in full with all Policies of the employer. Such Policies operate independently of this Agreement and are not incorporated into this Agreement.

9.6 Nothing in this clause affects the employer’s right to dismiss you without notice for serious misconduct. Serious misconduct includes (but is not limited to):

(a) wilful or deliberate behaviour that is inconsistent with the continuation of employment;…

(e) refusing to carry out lawful and reasonable instructions;…
(h) conduct that causes imminent and serious risk to the reputation, viability or profitability of the employer’s business.

9.7 Where you are dismissed for serious misconduct you are only entitled to payment for time worked up until the dismissal. 1

[10] Ms Major’s Employment Agreement was accompanied by a Position Description 2.

[11] Mr Paul Lawrence, Director, gave evidence that on an employee’s induction they are advised of the chain of command when reporting matters 3. In addition, memorandums are forwarded for the information of employees from time to time to remind them of procedural matters4.

[12] Mr Lawrence gave evidence regarding four memorandums that had been issued over the period of October 2014 until March 2015.

[13] The memorandum from October 2014 titled ‘Email Process’ provided:

For the attention of all Resilience Solutions Staff.

All outgoing email’s [sic] to the client (MMA) or to the clients of MMA (for example Chevron) are to be sent to your Site Supervisor and/or Directors as a draft for dissemination and approved prior to being sent.

Resilience Solutions hold a high expectation and standard, and expect all email’s [sic] to be sent at the same standard of an event report.

If any issues occur during a nightshift that requires an email notification to be sent, it is not a requirement to send an email immediately, all relevant information of the occurrence can be entered into the Daily Operations Report and then passed onto your Site Supervisor / Duty Supervisor to process adhering to the above mentioned.

If an incoming email requires an urgent response please forward the email to your Site Supervisor and/or your Directors to process and then call your Site Supervisor and/or your Directors to advise.

For all emergencies please adhere to the Emergency Procedures 5.

[14] While there was no acknowledgment form signed by Ms Major to confirm that she had read and understood the contents of the memorandum titled ‘Email Process’, Ms Major gave evidence that she recalled reading it.

[15] The memorandum from March 2015 titled ‘Client Communications’ stated:

Attention all Resilience Solutions Staff

Please be advised that at no time will Resilience Solutions Safety Compliance Officers engage in communications (including in person, email or phone conversation) outside of your normal duties and procedures.

All phone, email and in person communications with MMA Offshore Personnel, MMA Offshore Clients, and MMA Offshore Contractors or Visitors regarding work related subjects/issues must be immediately referred to your Supervisor or Company Directors.

If you have any queries or you’re unsure please advise your Supervisor.

[16] Ms Major signed an acknowledgment form dated 20 March 2015 6.

[17] The memorandum from March 2015 titled ‘Reporting of Incidents’ was accompanied by a signed acknowledgment form from Ms Major dated 18 March 2016. It provided:

The reporting of any incident, which may require further follow up, is a standard part of duties performed by Safety & Compliance officers.

Any matters which may impact health and safety or operational issues must be reported to your supervisor at the time. If your Supervisor can’t be contacted Mike Bone or Steven Lawrence are to be notified.

Mike Bone 0438 808 953

Steven Lawrence 0438 111 955

Event reports must be then completed for each of these incidents. Accurately gathering and recording information ensures event reports clearly articulate the events.

Effective and professional communication between our staff, supervisors and management is a priority in our business. This ensures information shared with our clients is accurate, relevant and compliant with our duties.

Should you have any further queries regarding this matter, please contact your Supervisor 7.

[18] Resilience’s safety and compliance procedures specific to the Dampier Base, include ‘Incident Reporting’ 8 and ‘Daily Duties Main Access Gate’9. Under the heading ‘Incidents to be reported’ it stated:

All safety & compliance personnel are required to report all related incidents, including any safety and compliance issues which impact on any operations managed by Toll Energy.

Incident reports must be submitted to the Safety & Compliance Supervisor, and reviewed by Resilience Directors before being forwarded to the Toll Energy HSE Manager within one business day of the occurrence of the incident 10.

The document details what is to be included in the incident report.

[19] In March 2016, Resilience was working for Technip at BMF on an ad hoc basis.

[20] On 17 March 2016, while working on the night shift at the then Mermaid Marine facility which was later to become Toll, Ms Major was contacted by Ms Juanita Wineera, Safety and Compliance Officer (Ms Wineera) who was working at BMF. Ms Wineera is said to have asked Ms Major whether there were any Stevedores coming as Technip had enquired.

[21] Ms Major decided to go to the BMF in part to relieve Ms Wineera for a hygiene break and to address the question raised concerning Stevedores. As it so happened, on arrival at the BMF, Ms Major encountered several Technip workers who enquired with her who was going to unload the machinery. Ms Major suggested that if someone had a forklift licence they ‘would do it’ however the workers all informed Ms Major ‘not me’. Ms Major then proceeded to contact her husband Mr Hutchison and asked if any Stevedores were expected to which Mr Hutchison replied in the negative. Subsequently, Ms Major then escalated the matter to the client representative of Qube Ports, Mr Kennedy.

[22] There were two subsequent interactions with staff other than Resilience during the course of that evening. One involving a worker of Technip who questioned Ms Major whether she was going to stop the job and another involving a worker with whom she discussed how things were going and that she was pleased that the freight movements had been sorted. To which the worker is said to have replied ‘[I]t was me that drove the fucking forklift alright’.

[23] On 18 March 2016, a Technip Manager made a complaint to Mr Lawrence about Ms Major’s conduct on the nightshift of 17 March 2016. The nature of the complaint was that Ms Major had engaged in unauthorised conducted by allegedly contacting Technip Contractors and had impacted on the operations at the BMF.

[24] Mr Lawrence conducted an investigation into the matter. By letter of 25 July 2016, Ms Major was informed that the matter required no further action and was reminded of the ongoing requirement to report incidents as per a discussion held with Mr Lawrence on 13 May 2016.

[25] Ms Major gave evidence that the events occurred, she did not complete an event report regarding the events of 17 March 2016 and that she did not report the events to Mr Hoani Wano, Supervisor (Mr Wano), or to either Mr Lawrence or Mr Bone the Directors of Resilience.

[26] Both Ms Major and Mr Lawrence gave evidence that Ms Major did not receive a disciplinary outcome concerning the events of 17 March 2016. However, Mr Lawrence said that he reminded Ms Major of the requirement to report incidents through the chain of command, namely her Supervisor and the Directors and as noted the letter of 25 July 2016 and reiterated the ongoing requirement to report incidents as per the discussion held with Mr Lawrence on 13 May 2016. Ms Major was unable to recall precisely what was said in the meeting on 13 May 2016 giving reason of the passage of time. Mr Bone submitted that Resilience had decided to give Ms Major a second chance.

[27] Ms Major lodged a grievance with Resilience concerning the time taken to conduct the investigation into the events of 17 March 2016 and a deficit in the communication that was provided to her. Ms Major’s grievance was addressed in a letter of 12 August 2017, in which Mr Lawrence provided an apology.

[28] On 2 October 2017, Mr Lawrence was copied into an email with the subject line ‘No Resilience Solutions Security Mobile Phone since 09/09/2017’, which Ms Major had sent to Resilience Directors, a Resilience Supervisor and a client representative of Resilience, namely a Mr Clint Cork (the Email). The Email concerned an issue with a Resilience mobile phone. It contained the following content:

On 22/08/2017 Resilience Solutions security mobile phone No: 0458732782 advised no available credit. Helen Bone loaded credit to the phone on 22/08/2017, however the credit was used in a very short time. Since then there has been ongoing problems.

All emails requesting credit loading are sent to

[email protected] and [email protected]

Further emails requesting credit for the mobile phone have been sent on 09/09/2017, 11/09/2017 and 5/09/2017.

On 21/09/2017 and 27/09/2017 it has been noted in our office communication book that there is still no available mobile phone credit.

On 29/09/2017 a txt was sent to Resilience Solutions Supervisor asking about phone credit.

Between emails, communication book notations and txt messages there have also been numerous requests to the Supervisor at shift handovers to prioritise a credit load or initiate a phone plan since early September. All to no avail.

Since 09/09/2017

There has not been a 24 hours a day mobile security contact available as advised in an email from the Supervisor Clint Cork (Port Manager) on 26/07/2017.

There has been no phone diversion for office land line calls to the mobile phones should the office line ring out.

The gatehouse guard is essentially unable to be contacted if out of the gatehouse (with the exception of the Emergency Mobile Phone which is charged and carried by the guard on duty at all times).

At present the Main-gate Guards are using the office land-line, but more often than not, their personal mobile phones to call or txt staff regarding MSIC requirements, shift finish times or assist with any queries from on-site guards.

Can the on-going issue of the security mobile phone be addressed and rectified with priority.

Regards,

Juanita Wineera, Julie Major, Vicki Birnie and Tina Kemp.

Resilience Solutions Safety and Compliance Officers.

Gatehouse TEM DSB.

[29] Ms Major’s evidence was that on 1 October 2017 she had put together the basic body of the Email and had left drafts sitting near where the toolbox was held for the ‘workgroup’ to look at and make comment on. The workgroup consisted of Ms Wineera, Ms Vicki Birnie, Ms Tina Kemp and Ms Major. Ms Major said she had a one on one discussion with Ms Vicki Birnie at handover regarding the draft email. Concerning Ms Wineera, Ms Major referred to having provided Ms Wineera with the opportunity to see the draft by text message.

[30] The text message that was said to have been sent to Ms Wineera was sent by Ms Major on the afternoon of 1 October 2017, it stated:

Just done draft for email mobile phone. Yowch!! – straight to the point. Hope it’s not too brutal WGAF – not me!

Email sent – waiting for the fallout. Don’t think regulation PPE will cover it

(Text Message).

[31] Ms Major admits that she sent the Text Message to Ms Wineera and Ms Wineera confirmed its receipt.

[32] Ms Major’s version of events is that Ms Wineera informed her that it was ‘sweet’ and would see it, or look at it, when she next came to work. Ms Wineera denies having read the Email or giving Ms Major permission for her to send it and did not think that the Text Message concerned her as she was unaware that her name would be included on the Email.

[33] The evidence of Ms Major regarding the Text Message was that it was an inappropriate statement for her to make, she was embarrassed about it, and it was something that she was not proud of. Referring again to the Email, Ms Major reflected that it was out of character for her to put something together like that and she really did not want to get involved with the matter given the events in March 2016.

[34] Ms Major however admits that she sent the Email. Ms Major gave evidence that it was on behalf of the workgroup namely, Ms Juanita Wineera, Ms Vicki Birnie and Ms Tina Kemp.

[35] Before Ms Major sent the Email, it was apparent from the evidence of Mr Wano, Mr Lawrence and Ms Major, that there had been a problem with the Resilience mobile phone. Phone calls could be received on the mobile phone but could not be made. Mr Lawrence and Mr Bone had been liaising with Mr Wano and Telstra regarding the problem.

[36] Ms Major gave evidence that she had sent a text message to Mr Wano on 29 September 2017, regarding concerns about the Resilience mobile phone. Both Mr Wano and Ms Major confirm that he informed her that the matter was being dealt with or ‘sorted behind the scenes’.

[37] Mr Lawrence initiated an investigation into the sending of the Email as he held the view that the inclusion of Mr Cork in the Email was a direct breach of the Resilience reporting guidelines and procedures.

[38] In the period of 4 to 9 October 2017, Mr Lawrence interviewed Ms Juanita Wineera and Ms Tina Kemp. Ms Vicki Birnie resigned from her employment on or around 21 October 2017. Mr Lawrence did not interview her notwithstanding an attempt to arrange a time to do so prior to her resignation.

[39] On 19 October 2017, Resilience instructed Ms Major by letter of 16 October 2017 that she was required to attend a disciplinary meeting on 20 October 2017 with Mr Lawrence and Mr Wano by telephone linkup. The purpose of the meeting was to allow Ms Major the opportunity to respond to the following matters of concern:

● failure to follow strict guidelines in relation to communication outside parties and clients;
● intent to instigate damage to Resilience reputation and brand integrity; and
● actively creating a situation for economic damage to Resilience.

[40] On 20 October 2017, Mr Lawrence and Mrs Sue Lawrence interviewed Ms Major who was accompanied by her support person, Mr Hutchison. Subsequent to the meeting, Resilience decided to terminate the employment of the Ms Major and informed her accordingly. Resilience informed Ms Major that a decision had been made to terminate her employment effective from 20 October 2017. Ms Major received payment in lieu of notice and a letter notifying her of her dismissal.

[41] It was submitted by Mr Bone that in general Ms Major was regarded as competent in her work, and there was no criticism of her general work performance. Ms Major had been a good employee and the decision to end her employment had not been made lightly.

Initial matters

[42] Section 396 of the Act provides that, before considering the merits of an application for unfair dismissal remedy order, the Commission must determine some other initial matters which include:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Small Business Fair Dismissal Code

[43] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (Code). It is useful to set out ss.388(2) of the Act:

388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small

Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair

Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair

Dismissal Code in relation to the dismissal.

[44] The Code is only relevant if the employer is a small business as defined in s.23 of the Act.

[45] The Code provides:

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[46] The ‘Summary dismissal’ section of the Code clearly applies to dismissals that have ‘immediate effect’ as that term is understood by reference to the decision in Ms Li Li Chen v Australian Catering Solutions Pty Ltd T/A Hearty Health 11, are not dismissals on notice12, and are concerned with dismissals made on the basis of serious misconduct13.

[47] However, it is not the case that the Commission has to be satisfied that serious misconduct was the basis for the dismissal that occurred 14. Rather, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal and one must also consider whether that belief was based on reasonable grounds15.

[48] The focus on ‘serious misconduct’ must be taken as identifying the subject matter and it appears to be accepted that this term gleans its meaning from s.12 of the Act and thereafter Regulation 1.07 of the Fair Work Regulations 2009 (Cth) 16. However, it is not the case that the types of misconduct referred to in Regulation 1.07 are exhaustive.

[49] If it is the case that the dismissal is not by way of Summary Dismissal then the ‘Other Dismissal’ part of the Code is triggered. This requires consideration of the following:

•  did the respondent give the applicant a reason for dismissal;

•  was the reason a valid reason having regard to the applicant’s conduct or capacity;

•  was the applicant warned that she risked being dismissed if there is no improvement; and

•  did the respondent provide the applicant with an opportunity to respond to the warning and give her a reasonable chance to rectify the problem(s), having regard to the applicant’s response 17.

[50] In applying these requirements, I must also have regard to the procedural matters highlighted within the Code.

[51] If the Applicant’s dismissal was consistent with the Code, it cannot be considered to be unfair within the meaning of the Act.

Agreed matters

[52] It was not contested by the parties that the dismissal was by way of genuine redundancy 18. Further, I am satisfied that Ms Major was protected from unfair dismissal19 and that her Application was made within the required period as prescribed in ss.394(2) of the Act.

[53] Having considered the evidence, I am satisfied that the Respondent is a Small Business Employer as defined in s.23 of the Act. Neither party advanced an argument to the contrary.

[54] Both parties were in agreement that Ms Major had read and understood the obligations set out in her Employment Agreement, the Memorandums titled ‘Email Process’, Client Communications’, Reporting of Incidents’ and was aware of the Safety and Compliance Procedures – Incident Reporting Page 20.

[55] Further, it was not in contest that Ms Major had sent both the Text Message and the Email, and that she had sent a text message to Mr Wano on 29 September 2017 enquiring about the Resilience mobile phone and had received a response from Mr Wano regarding the same.

Matters in dispute

[56] In short, Mr Hutchison advanced the argument that the dismissal was unfair and was non-compliant with the Small Business Fair Dismissal Code.

[57] It was said that Ms Major had been afforded discriminatory treatment and that Ms Major was acting within the remit of her position when interacting with Technip personnel regarding the events on 17 March 2017.

[58] Concerning the submission regarding discriminatory treatment, Mr Hutchison explained that Ms Major was dismissed but other members of the workgroup who were complicit in sending the Email were not similarly treated. Having considered the submission of Mr Hutchison, I consider that the point that he sought to make was that Resilience had afforded inconsistent or differential disciplinary treatment to Ms Major when compared to those employees who were purported to be co-authors of the Email.

[59] Unsurprisingly, the Respondent submitted that the dismissal of Ms Major was compliant with the Small Business Fair Dismissal Code.

Consideration

Summary Dismissal

Belief that employee’s conduct was sufficiently serious

[60] It is first necessary to determine in this matter whether the Directors of Resilience genuinely held the belief that Ms Major’s conduct was sufficiently serious to justify immediate dismissal 21. It is self-evident that the belief held by Mr Lawrence and Mr Bone the directors of Resilience can only relate to the conduct of Ms Major about which both were aware at the time of the dismissal.

[61] The evidence clearly shows that both Mr Lawrence and Mr Bone were aware of the Email that was attached to the witness statement of Mr Lawrence, having both been copied to it. And there is uncontroverted evidence before the Commission that Ms Major admitted to drafting the Email on 1 October 2017 and then subsequently sending the Email on 2 October 2017.

[62] Further, Ms Major admits that she copied to the Email, Mr Cork the client representative, and Supervisor, Mr Wano.

[63] Having read the Email, Mr Lawrence provided evidence that he considered that the inclusion of Mr Cork to the email was a direct breach of the Resilience reporting guidelines and procedures, and initiated an investigation into the matter. It was also in evidence that Ms Major was well aware of such reporting guidelines and procedures having been reminded of them after the events of March 2016.

[64] Mr Hutchison submitted that had Mr Lawrence or Mr Bone held a belief that Ms Major’s conduct was sufficiently serious to justify immediate dismissal they would have instructed Ms Major not to attend work while the investigation was on foot.

[65] The absence of an instruction not to attend work while a disciplinary enquiry is on foot does not necessarily give rise to an inference that an employer lacked the genuine requisite belief that an employee’s conduct was sufficiently serious to justify immediate dismissal. The operative time for consideration of the belief, is at the time of dismissal 22. That is, did the employer hold the requisite belief at the time of dismissal and was it premised on reasonable grounds23. The operative time is not at the commencement of an investigation or enquiry.

[66] In the decision of Ms Li Li Chen v Australian Catering Solutions Pty Ltd T/A Hearty Health 24Colman DP expressed the following view, which I consider correct and therefore adopt:

In my view, the Code contemplates some period between the conduct justifying immediate dismissal and the dismissal. It requires that the employer must have a reasonable basis to believe that the conduct is sufficiently serious. It may take the employer some time to satisfy itself that there is a reasonable basis for immediate dismissal. It may be necessary to conduct an investigation into the relevant conduct.

[67] Mr Hutchison raised that while Ms Major was one of four employees named on the Email (part of the working group) she was the only one that was provided with a letter notifying her of a disciplinary meeting. Mr Lawrence gave evidence that having become aware that Ms Major sent the Email, he then sought to interview the other employees named on the Email during the period of 4 to 9 October 2017 to obtain information before putting allegations to Ms Major. Mr Lawrence said he considered it usual to want to gather evidence before speaking to the person against who the allegation is against. I am satisfied that there is nothing remarkable about the process undertaken by Mr Lawrence

[68] Ms Wineera provided Mr Lawrence with the Text Message during the course of her interview with him, explaining that it had been sent to her by Ms Major.

[69] Having interviewed Ms Wineera, Mr Lawrence formed the view that she had not provided consent for the Email to be sent and was unaware of its contents. Further, he considered that the Text Message displayed a level of animosity from Ms Major regarding Resilience and that Ms Major knew her actions had the potential to be disruptive and damage Resilience’s reputation.

[70] In contrast, Ms Major is adamant that she had provided Ms Wineera with the opportunity to view the Text Message and that her view was that Ms Wineera knew what the contents of the Email were and had consented to it being sent. Ms Major continued that had one of the workgroup objected to the Email being sent she would have refrained from sending it.

[71] The evidence before me is that it was Ms Major who enquired with Mr Wano regarding when the mobile phone issue would be rectified. Notwithstanding that she had been provided with an answer, Ms Major decided to escalate the matter within a couple of days of Mr Wano’s response, by drafting the proposed Email and circulating it to the workgroup. Rather than following the reporting requirements within Resilience and notifying Mr Lawrence and/or Mr Bone directly, Ms Major opted to send the Email and copy in the client representative, Mr Cork.

[72] The copying of Mr Cork to the Email would have undoubtedly been embarrassing for Resilience given its content. In effect, the dirty laundry had been aired in an inappropriate forum before an inappropriate audience. In basic terms the Email set out that Resilience had inadequate phone coverage in place at the location of its client and Resilience management had been unreceptive to numerous requests to rectify the situation. Further, it is open to infer that Ms Major’s email reflected a general dissatisfaction amongst the workgroup which may have lead a client to conclude there were genuine cultural or engagement issues with its contractor.

[73] I am satisfied on the evidence that it was simply not the case that the absence of the Resilience mobile phone had resulted in there not being 24 hours a day mobile security contact available or that there had been no phone diversion for the office land line. Although I accept Ms Major’s evidence that at times the reception of incoming calls fluctuated and was not always present on the screen. Ultimately, the client based mobile phone was available for emergency use and phone diversion had been set up. Further, Resilience management had responded to Ms Major’s enquiry regarding to the situation being rectified.

[74] Ms Major expressed that the absence of the Resilience mobile phone had resulted in her receiving ‘digs’ and daily snide comments from workers on the site regarding the availability of someone in the Gatehouse to answer the phone. She was unappreciative of such remarks.

[75] Remarks from workers, the unavailability of the Resilience mobile phone to make calls for a period, and what Ms Major considered a delayed response to rectify the Resilience mobile phone issues are inadequate reasons for Ms Major to disregard what were lawful and reasonable instructions set out within her Employment Agreement, the Memorandums titled ‘Email Process’, Client Communications’, Reporting of Incidents’ and the Safety and Compliance Procedures – Incident Reporting Page.

[76] It was submitted that the business of Resilience is reliant on providing contracting partners with well-structured documentation and timely event reporting. Resilience considered that Ms Major had by her Email, created a perception that there was unstable morale amongst employees and had potentially exposed the business to potential economic loss. Resilience had submitted that it had trained all employees to be conversant with its reporting process and procedures, and it was understood by all employees that under no circumstances were any issues to be brought to the attention of Resilience clients. Further, after the events in March 2016, Ms Major had been clearly reminded of such obligations.

[77] Ms Major never thought that the Text Message would surface and be brought to the attention of Mr Lawrence. She admitted her embarrassment. However, the Text Message was and inevitably this should prove to be both a sobering and salient lesson for Ms Major. It was evident from the Text Message that Ms Major considered the Email contents to be blisteringly forthright, and that there would be fall out. The comment ‘WGAF’, meaning ‘who gives a fuck’ clearly evinces a disregard for the perception the Email might create, or at the very least, a view that Ms Major did not care.

[78] Resilience submitted that their employees were entrusted with a level of autonomy while working and those employees were supported by the provision of verbal and written procedures.

[79] The focus on ‘serious misconduct’ relies in part on Regulation 1.07 of the Fair Work Regulations 2009 (Cth) 25. Regulation 1.07 refers to both wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment or conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer’ business.

[80] However, it is not the case that the types of misconduct referred to in Regulation 1.07 are exhaustive. It has been said the touchstone is whether the conduct was such a grave nature as to be repugnant to the employment relationship 26.

[81] It is clear that in relation to Summary Dismissal under the Code it is not necessary for the Commission to be satisfied that the serious misconduct, which is the basis for the dismissal, actually occurred. Rather, it is whether the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal.

[82] On the evidence, I am satisfied that Mr Lawrence held a belief that Ms Major had engaged in wilful and deliberate behaviour that was inconsistent, to the point of being repugnant, with the continuation of her employment contract. Quite correctly, Resilience was of the view it was entitled to set standards regarding reporting procedures and having outlined them to Ms Major, insist adherence. I am satisfied that both Mr Lawrence and Mr Bone believed that Ms Major had not only breached such procedures but had done so in a manner that may have ultimately placed Resilience in a precarious position with its client that may in turn have cause imminent risk to the viability or profitability of Resilience.

[83] I am absent any doubt that the Directors believed the conduct of Ms Major was sufficiently serious to render the relationship between Resilience and her no longer tenable. Hence immediate dismissal was justified. Further, I am unconvinced that Ms Major’s Employment Agreement or Position Description provided her with the latitude to communicate in the manner she did to Mr Cork.

Reasonable grounds

[84] Mr Lawrence gave evidence that on receipt of the Email he commenced an investigation into the matter and interviewed relevant persons. On the evidence it is apparent that Mr Lawrence gave due consideration to the responses received during interviews, had considered whether Ms Major had breached lawful and reasonable instructions of Resilience and the gravamen of such, and had consulted with Mr Bone the other Director of Resilience.

[85] I am satisfied that the investigation by Mr Lawrence is a factor to consider in assessing whether any such belief held by Mr Lawrence and Mr Bone was based on reasonable grounds. In that respect I find that Resilience held the requisite belief at the time of dismissal and it was premised on reasonable grounds.

Inconsistent treatment of employees

[86] A relevant matter to whether Ms Major’s dismissal was harsh, unjust or unreasonable is whether Ms Major was unfairly afforded inconsistent treatment by Resilience in relation to her dismissal when compared to other employees whose names were on the Email.

[87] Mr Lawrence sought to interview the employees named on the Email and did so with the exception of Ms Vicki Birnie. It was evidently clear that Ms Major’s part in the Email debacle, if one can refer to it as that, was distinguishable to her colleagues as was the context in which it occurred. Ms Major made an enquiry with Mr Wano that was responded to on 29 September 2017. Notwithstanding within days she had drafted the proposed Email and disseminated it to the worker group for comment.

[88] Ms Major admitted she sent the Email and the Text Message. Albeit she professed that she sought no involvement after the events of March 2016, Ms Major inserted herself into the middle of it. The events of March 2016 should have indicated to Ms Major resoundingly that reporting within the business was to be done so in a manner that was compliant with the procedures of the business.

[89] In Darvell v Australian Postal Corporation 27, the Full Bench made the following comments in relation to the question of differential treatment between employees (references omitted):

[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton’s case, his Honour said:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

[22] Subsection 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to ss.387(h) of the FW Act.

[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]

[24] We respectfully concur with their Honours.

[90] Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not the case here. There is insufficient evidence to suggest that the cases of Ms Wineera and Ms Kemp were comparable to Ms Major.

[91] Mr Hutchison advanced the case that Ms Wineera was complicit in sending the Email and therefore it followed Ms Wineera should have been afforded the same treatment as Ms Major or Ms Major the same treatment as Ms Wineera. However, I am unpersuaded by this contention.

[92] If I were to find that Ms Wineera had been complicit in the sending of the Email, it remains that the cases of Ms Major and Ms Wineera would not, in my view, be comparable cases. Ms Major’s involvement in the drafting, dissemination and sending of the Email clearly differentiates her from the conduct of others in the workgroup. Further, Ms Major’s conduct occurred in circumstances where the back drop was the incident in March 2016 where she had been reminded about reporting processes, procedures and obligations.

[93] I am not prepared to find that Ms Major’s dismissal was unfair because Ms Wineera and Ms Kemp did not have their employment terminated. It is clear that Ms Major took a primary role in drafting the Email, finalising the Email and sending the Email. Further, the Text Message manifested a blatant disregard for the impact that the Email may have had on her employer.

Immediate effect

[94] Resilience submitted it had terminated the employment of Ms Major on the basis of serious misconduct and that the dismissal was a Summary Dismissal.

[95] It is evident from the evidence of Mr Lawrence and that of the letter of termination that on 20 October 2017, Mr Lawrence informed Ms Major that her employment was to end and that was to take effect immediately.

[96] An immediate dismissal is one which takes effect immediately. This includes a summary dismissal in which no notice is provided, but also includes a dismissal with a payment in lieu of notice, which is intended to have immediate effect. In the decision of Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services 28, the Full Bench found that while Mr Ryman was paid an amount said to be in lieu of notice this did not alter the position that Mr Ryman’s dismissal occurred with immediate effect.

[97] It is evident from the letter of termination 29, Ms Major’s final payslip30 and the evidence of Mr Lawrence that payment in lieu of notice was provided. The provision of payment in lieu of notice is not contrary to the form of dismissal that sits as a ‘Summary Dismissal’ under the Code.

Procedural matters

[98] I have considered the procedural matters raised by the Small Business Code.

[99] In terms of the opportunity to be represented, the Code provides that in discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. Ms Major was accompanied by Mr Hutchison during the interview on 20 October 2017 and when informed of her dismissal was similarly accompanied.

[100] Resilience submitted unsigned witness statements that had been drafted in a questionable manner, namely in the third person. However, I am satisfied that the oral testimony provided was such that it was voluntary and gave rise to no issues concerning credibility.

[101] While the evidence of Ms Major and Ms Wineera concerning the Email was at odds, I am of the view that both presented as credible witnesses and in truth it was difficult to discern the correct or truthful version of events.

[102] Mr Hutchison submitted that Ms Wineera had been in fear of losing her job as a casual employee and therefore had opted to provide evidence supportive of Resilience’s case. However, there was simply no evidence before the Commission to draw this conclusion.

[103] With regard to Mr Wano, again I am similarly unconvinced that the deficiencies with his written witness statement have impugned his oral evidence.

[104] Therefore, having considered the deficiencies with the witness statements of Ms Wineera and Mr Wano tendered by Resilience, and the oral testimony provided by both, I am of the view that little, if anything turns on it, particularly as both gave sworn oral testimony. The witness statement of Mr Lawrence was not similarly afflicted.

[105] Mr Hutchison tendered into evidence the Witness Statement of Vickie Joy Birnie albeit she was not available for the hearing. Mr Bone did not object to it being admitted and understood there would not be the opportunity for him to cross examine Ms Birnie. Both parties were cautioned regarding the weight that could be attributed to Ms Birnie’s evidence. I have considered the evidence of Ms Birnie. It does not alter the findings arrived at during the course of this decision.

[106] I am satisfied that Resilience afforded procedural fairness to Ms Major throughout the disciplinary process.

Conclusion

[107] On balance, I consider that the dismissal of Ms Major was consistent with the Small Business Fair Dismissal Code Summary Dismissal and Procedural Matters parts.

[108] Section 385 of the Act provides as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[109] All of these prerequisites must be met. As a result of my findings, the dismissal of Ms Major is not unfair within the meaning of the Act.

[110] Accordingly, I am obliged to dismiss this application and an order 31 to that effect is being issued in conjunction with this decision.

[111] Both parties were self-represented. It is acknowledged that both came to hearing well-prepared, were respectful to both each other and this Commission, and conducted themselves at all times in an exemplary manner.

DEPUTY PRESIDENT

Appearances:

Mr W Hutchison, for the Applicant.

Mr M Bone, for the Respondent.

Hearing details:

2018

Perth

17 and 18 January

Final written submissions:

25 January 2018

 1   Exhibit R1.

 2   Exhibit R1.

 3 Exhibit R12 [9].

 4 Exhibit R12 [9].

 5   Exhibit R3.

 6   Exhibit R5.

 7   Exhibit R6.

 8   Exhibit A1.

 9   Exhibit A1.

 10   Exhibit A1.

 11   [2017] FWC 3930 [62]-[64].

 12   Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2015] FWCFB 5264 [36].

 13   Ibid [37] – [38]; Grandbridge Limited v Mrs Diane Wiburd[2017] FWCFB 6732 [28].

 14   Ibid.

 15   John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo [2012] FWAFB 1359.

 16   Grandbridge Limited v Mrs Diane Wiburd[2017] FWCFB 6732 [28]; Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264 [37] , Owen Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033.

 17   Danute Kristina Grigonis v Adelaide Coffee Company Pty Ltd[2011] FWA 1586 [55].

 18 s.382 of the Act.

 19   Ibid.

 20   Exhibit A1.

 21   Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264 [41].

 22   John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo [2012] FWAFB 1359.

 23   Ibid.

 24   [2017] FWC 3930 [63].

 25   Grandbridge Limited v Mrs Diane Wiburd[2017] FWCFB 6732 [28]; Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264 [37], Owen Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033.

 26   Owen Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 [34].

 27   [2010] FWAFB 4082.

 28   [2015] FWCFB 5264 [42].

 29   Exhibit R12 Attachment 24.

 30   Exhibit R12 Attachment 25.

 31   PR599987

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